by Matt Clarke

The Supreme Court of Colorado ­clarified that there is no per se rule excluding self-serving hearsay by a criminal defendant, holding that “like any other hearsay statement, a defendant’s self-serving hearsay statement may be admissible if it satisfies a hearsay-rule exception in the Colorado Rules of Evidence [(“CRE”)].”

College student L.S. went out drinking with friends. Jacob Vanderpauye, with whom she had taken a class, joined the group. The two flirted with one another and then left together to join his friends at another bar. “There, she told him she was drunk and very tired. Vanderpauye told her she could stay at his apartment if she wished, and she agreed to spend the night there.”

As they “walked to his apartment, she told him that she was not going to have sex with him.” He “appeared offended by this statement and told her that he didn’t want her to think of him that way. L.S. apologized.”

They sat on the bed, watched TV, and “engaged in affectionate kissing for a while, but she eventually told him she was drunk and tired and needed to get some sleep. And he responded that she should get some sleep.”

“L.S. fell asleep on her side with her clothes on. After sleeping for a while, she woke up on her back and discovered Vanderpauye on top of her. Her shirt and bra were off, her skirt was up, her underwear was pulled down, and she could feel Vanderpauye’s penis penetrating her vagina. She yelled, ‘What are you doing? You’re raping me! I was passed out! What are you doing?’ He immediately responded, ‘I thought you said I could do anything to you.’ According to Vanderpauye, while she was capable of apprising the nature of her conduct, she consented to have sexual intercourse with him.”

Vanderpauye was tried for sexual assault by intrusion or penetration: (1) while L.S. was incapable of appraising the nature of her conduct and (2) while she was physically helpless, in violation of Colorado Revised Statutes §§ 18-402(1)(b) and (1)(h), respectively. The defense argued that Vanderpauye “had not formed the requisite mental state (knowingly) because he believed L.S. had consented to having sexual intercourse with him, and L.S.’s conduct and the physical evidence corroborated his belief; L.S. had exaggerated her level of intoxication; and L.S. had pursued these charges because of her longstanding preoccupation with sexual assault.” He asserted that she “was angry that multiple friends had failed to report that they had been raped; she’d publicly confronted two of the alleged rapists; she regularly binge-watched the television show Law and Order: SVU; she’d watched many crime documentaries and had recently watched one about sexual assault on college campuses; her aunt is a rape counselor; [and] she purportedly had a ‘secret obsession with the criminal justice system.’”

Vanderpauye filed a pretrial motion to have his statement to L.S., “I thought you told me I could do anything to you,” admitted into evidence. He argued that, although it was hearsay, it was admissible as an excited utterance under CRE 803(2) and to show the then-existing state of mind under CRE 803(3). The trial court ruled that the statement was inadmissible because it was self-serving hearsay.

At trial, L.S. testified that Vanderpauye “seemed very startled when she accused him of raping her.” Defense counsel renewed his request to introduce Vanderpauye’s response as an excited utterance without success.

The jury convicted Vanderpauye on the physically helpless count and hung on the other count. He was sentenced to sex offender intensive supervision probation for at least 20 years and up to life. He timely appealed.

The Court of Appeals reversed after holding that neither the CRE nor state Supreme Court decisions could support “a per se rule prohibiting the admission of self-serving hearsay by a criminal defendant” and “that Vanderpauye’s statement was admissible under the excited utterance exception in CRE 803(2).” The prosecution successfully petitioned for a writ of certiorari. Vanderpauye was represented by Public Defender Megan A. Ring and Deputy Public Defender River B. Sedaka before the Colorado Supreme Court.

The Court noted that the practice of excluding self-serving hearsay had its “genesis” in the historical English common law which “prohibited anyone with a ‘direct pecuniary or proprietary interest’ in the outcome of a case, including a party, from testifying.... This drastic doctrine remained in effect in England as late as the middle of the 19th century [and] it was several decades later before the United States could shake it off.” The doctrine also precluded a party’s self-serving hearsay.

“So, when the direct-interest doctrine was abrogated by statute throughout this country, any sweeping practice regarding the inadmissibility of self-serving hearsay statements ‘should have been abandoned by implication,’” explained the Court. However, it was not, breeding confusion.

The Court then clarified “that Colorado law has no per se rule excluding a self-serving hearsay statement by a defendant.” It held “that, like any other hearsay statement, a defendant’s self-serving hearsay statement may be admissible if it satisfies a hearsay exception rule in the” CRE. The Court noted that its position is in accordance with “two well-respected treatises” and appellate court decisions in California, Connecticut, Georgia, Illinois, Oklahoma, and Tennessee. (See full opinion for citations.)

The prosecution relied on People v. Cunningham, 570 P.2d 1086 (Colo. 1977), which was decided before the state Supreme Court promulgated the CRE and did not actually address the same issue. Consequently, the Court overruled Cunningham; People v. Abeyta, 728 P.2d 327 (Colo. Ct. App. 1986); and People v. Avery, 736 P.2d 1233 (Colo. Ct. App. 1986), to the extent they suggested Cunningham erected a per se barrier to self-serving hearsay statements.

The Court then determined that the statement was admissible as an excited utterance, one “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition,” pursuant to CRE 803(2). It rejected the prosecution’s position that the startling event was of his own making, being caught allegedly raping L.S., because that interpretation eliminates the presumption of innocence.

The Court ruled that the statement was “highly probative” and the prosecution’s presentation had misleadingly made it seem as if he had failed to respond to L.S.’s accusation. Thus, the Court held that it was admissible. Further, its exclusion was not harmless.

Accordingly, the Court affirmed the judgment of the Court of Appeals. See: People v. Vanderpauye, 530 P.3d 1214 (Colo. 2023).